The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use.  (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users).  However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke.

In 2012, Massachusetts legalized the use of medical marijuana. In 2014, Plaintiff Cristina Barbuto received an offer of employment from Defendant Advantage Sales and Marketing (“ASM”) and was required to take a pre-employment drug test.  Ms. Barbuto informed her future supervisor that she would test positive because of her medical marijuana use.  Her supervisor told Ms. Barbuto that the medical use of marijuana “should not be a problem,” but he would investigate it further. After her first day of work (where she did not use marijuana in the workplace), however, Ms. Barbuto was discharged for testing positive for marijuana because, as HR told her, “[ASM] follow[s] federal law, not state law.”

Ms. Barbuto brought a disability discrimination claim against ASM.  The Massachusetts Supreme Judicial Court ruled because her use of marijuana was legal under state law, Ms. Barbuto could bring state “handicap” discrimination claims against ASM. The court primarily relied on the state’s medical marijuana statute, which provides that individuals may not be “denied any right or privilege” on the basis of medical marijuana use.  The court further noted that disabled employees and applicants have a statutory right to receive reasonable accommodations (unless they impose an undue burden on the employer). For this reason, rejecting an applicant solely because she uses medical marijuana is a denial of a reasonable accommodation.

The court then analyzed whether the use of medical marijuana off-duty and outside the employer’s premises presents an undue burden to the employer.  The employer argued that medical marijuana cannot be a reasonable accommodation because it remains illegal under the federal Controlled Substances Act, which designates it as a Schedule I controlled substance.  That designation means that the federal government has found marijuana “has no currently accepted medical use in treatment.”  The court rejected ASM’s argument, because it went against the intent of the Massachusetts voters in permitting medical use of marijuana for some patients.

The court acknowledged, however, that the undue hardship argument might be available when the employee’s use of marijuana violates an employer’s contractual or statutory obligation, potentially jeopardizing the employer’s ability to operate its business. For example, the Drug Free Workplace Act states that federal government contractors must maintain drug free workplaces, and the U.S. Department of Transportation regulations prohibit DOT-covered safety-sensitive employees from using marijuana. In addition, the court stated that an employer might be able to demonstrate that an employee’s use of medical marijuana poses a safety risk to the public or to fellow employees.

The court also ruled that the employer should have engaged in the interactive process with the individual to determine whether there was any other accommodation that could have provided an effective accommodation.

Lessons for Employers: Employers in jurisdictions with medical marijuana laws on the books should look closely at the language in the statute to see if it prohibits employers from discriminating against medical marijuana users and/or provides employees with the right to sue for violation of their right to use medical marijuana.  If so, then the reasonable accommodations requirements under state disability discrimination laws would suggest that the employer might need to engage in the interactive process to assess whether the off duty use of medical marijuana can be accommodated. Government contractors and employers governed by the Department of Transportation regulations, however, would likely be able to refuse any such accommodations since they are specifically subject to federal laws prohibiting the use of marijuana. Some states even have language in their medical marijuana statutes specifically providing that employers need not accommodate use if it would cause the employer to violate federal contract requirements or the DOT regulations.

While the accommodation obligations of employers has gotten a little hazy, one thing is still clear—none of the state statutes that legalize medical marijuana require an employer to permit the use of marijuana during work hours or on the work premises.